A divorce can be a very unpleasant process and during this period, so many issues are bound to arise. One of the prominent questions that comes up is as regards the custody of the child.
If the two partners are splitting on mutual grounds and do not harbor any resentment for each other, then they may choose to, between themselves, agree on who gets to keep the child/children and who gets to make major decisions for the child. However, if the partners are unable to decide the custody of the child, then they may seek external help from a family law attorney to decide for them, and that means, in most cases, going to court.
When a court is treating the matter of custody, it consider it in two aspects – physical custody and legal custody, and the court would review so many important things before making a final decision in the case.
Before proceeding, first, we need to understand the difference between physical and legal custody
Physical custody has to do with a parent’s right to have the child live with them. Since after a divorce, both partners part ways to live in separate homes, the child has to stay with one of them. The court may grant physical custody to both parents, which is known as joint physical custody. The court rarely denies a parent’s physical custody unless the parent cannot care for the child. There are many grounds upon which a court may deny a parent custody and one of such is if the parent has nowhere to stay after the divorce or such a parent has been proven to be abusive. Sometimes when a court grants a parent primary physical custody, they grant the other visitation rights. This allows the other parent to have the child for a particular time, like during the weekends.
In the event of joint physical custody, it is not always a 50/50 deal as things could affect the time a parent spends with the child, such as the proximity between the homes and the distance from school.
How Does A Court Determine Who To Grant Physical Custody To?
When a court considers granting physical custody of a child, it has to review certain factors with the overriding consideration being what is in the best interest of the child.
One of the things the court readily considers is who lives very close to the child’s school. That is quite important as the child’s education should not suffer as a result of the divorce. Staying with a parent that lives far could affect the child’s performance in school as they could arrive late or miss school.
Another thing the court looks out for is who has the means to take care of the child. A parent might not have the capacity to provide for the child if they come to live with them. The court also considers which parent has always provided for the child, even before the divorce.
In a situation where the child is old enough and mature enough to reason and make rational decisions, the court may consider the child’s desires but that choice is not binding on the court.
This has to do with the right to make important decisions for the child. Such decisions include religion, medical care, education, and every other important thing that would affect the child while growing up.
When a court grants a parent legal custody over a child, the court has granted the parent the right to make important decisions, mostly long term, regarding the child’s life. The idea behind it is that, while they were married, both partners made decisions concerning the child’s life and now that the marriage is over, someone has to keep making those decisions.
In many cases, the court will grant joint legal custody allowing both parents to make big decisions for the child. When this happens, both parents would have to consult each other whenever any decision has to be made and reach a final agreement together.
At other times, the court grants only one parent sole legal custody over the child. In such an arrangement, only that parent gets to make those decisions, without consulting the other parent. One of the reasons why a court may grant sole legal custody is if the other parent resides far away or if the other parent does not put interest in matters concerning the child.
Joint Legal Custody
Most courts would grant the parents joint legal custody to maintain the bond between the child and both parents. But as good as a joint legal custody sounds, it is not always the best form, especially when the divorce was not mutual. Joint legal custody in a contested divorce may be an avenue for both partners to carry on with their resentment towards one another and this may cause the child to suffer greatly.
At times, a parent may make decisions without consulting the other, and this could create more issues between them. What the other parent has to do is to approach the court and ask it to call the other parent back in line, something which can be very unpleasant.
But in a situation where both parents are still on a good or cordial term, then there would be little or no issues as it would be relatively easy for them to reach a common ground for the child.
Sole Legal Custody
In sole legal custody, only a parent can make decisions for a child. Sometimes, since a court would almost grant joint legal custody, a parent would be the one to fight for sole legal custody, maybe due to the ineffectiveness of the other parent.
Sometimes too, a parent, who does not have sole legal custody, may make quick decisions for a child, especially as regards medical attention, and in such case, the court would have no problem with it.
The peculiar thing about custody orders is that they are not always final as they can be changed or revoked at the request of a parent, with a good reason for it. The changes made are to be done in the best interest of the child so that they do not lack or feel neglected in any way. If you feel that the current custody orders seem unfair to the child or you, you can always take it up with the court and ask for modification.